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Colonial Cases

The Martha, 1878


The Martha

Mixed Court, Shanghai
14 November 1878
Source: The North China Herald, 10 January 1879



We are asked to publish a fuller report of the case of the Costa Rica ship Martha, heard in the Mixed Court on the 14th November last, so as to give a more compete record of the circumstances.


MIXED COURT. 10 January 1879

Shanghai, 14th Nov., 1878

Before the Chinese Magistrate CHEN and Dr. MACGOWAN. U.S. ASSESSOR         .

In Admiralty.

Re the Costa Rica barque Martha.

   This was an action instituted by Messrs. Farnham & Co. to recover the sum of Tls. 22,373 for repairs to the Costa Rica ship Martha.

   Messrs. COWIE and MYBURGH appeared for the plaintiffs.

   Plaintiffs' petition was as follows:-

  1. - That he is a citizen of the United States of America, resident at Shanghai aforesaid.
  2. - That the  said ship, which flies the Costa Rica flag, and is of 852 tons measurement, or thereabouts, is now anchored in the harbour of Shanghai aforesaid, and is within the jurisdiction of this Court, there not being any Consular or other representative of Costa Rica at Shanghai.
  3. - That the said ship arrived at Shanghai on or about the 29th day of July last, in great need of repairs.'
  4. - That by the order and directions of her  s aid Master and of her Agents, Messrs. Buchheister, Schmidt & Co., of Shanghai, merchants, the  said ship was   during the months of September and October, 1878, thoroughly repaired by the Petitioners''  said firm at Shanghai.
  5. - That the time occupied in effecting the necessary repairs to the said ship was a period of 74 days, to wit, from the 16th day of August last to the 28th day of October last, both inclusive, and the repairs required could not have been completed in less time.
  6.  - That the Schedule hereunto annexed is a true copy of the bill of the Petitioners'' said firm, and all the charges therein contained for  dockage, labour, and materials supplied, &c., are usual, just, fair and reasonable; and the whole of the repairs were absolutely necessary to restore the said ship to a seaworthy condition.  The  said bill has been approved of as correct by the  said Master of the said ship and by her said Agents, and shews the sum due for such repairs amounts to Taels 22,373,31, which the said Petitioner now claims against the said ship, her tackle, apparel and furniture.
  7. - That the Petitioner has frequently applied to the said Master and Agents for payment of the said claim against the said ship, but it still remains wholly unpaid and unsatisfied, and the aid and process of this Court are necessary to enable the Petitioners to obtain payment thereof.

   Your petitioner therefore prays that judgment may be given against the said ship accordingly for the  said sum of Tls. 22,373,31,  with interest and costs and that for such purpose the said ship be forthwith arrested and sold and the proceeds of  sale be applied b y this Court in satisfaction of such judgment.

   On the presentation of this plaint, November 9th, the vessel was placed under arrest by order of the court, and the Captain and agents were summoned to attend on the 14th of the same month.  Captain Gunzel appeared in person, and Messrs. Buchheister, Schmidt and Co. through Mr. C. Schmidt; who each testified that the repairs made by the petitioner were all needed, that they had been satisfactorily done, and at a reasonable charge.  Captain Barton marine surveyor, testified that after a careful survey, he had given the Martha a certificate, S lass A1, for seven years.  Mr. Blethen also swore respecting the correctness of the bill and accompanying petition.

   It appeared on inquiry by the Court that the Martha was American built, and bore the name of Rattler.  During the rebellion she was sold and passed from one flag to another, until her last purchaser, Mr. Scheel, a German resident of Lima, placed her under Costa Rican colors, and  sent her to British Columbia to take a cargo of timber thence to Shanghai.  At Port Townsend she shipped a crew under American Articles.  On her arrival at this port, repairs were considered necessary, the cost of which brought her to  financial #grief.

   Mr. MYBURGH cited the following cases in support of the plaintiff's claim:

  1. By the civil law and the law of nations, material men (i.e. men who supply necessaries to the ship) have a lien not only on proceeds (of sale), but also on the ship itself. Pritchard's Digest, Vol. I, p. 361.
  2. The lien is not extinguished by giving credit for a fixed time, nor by allowing the ship to depart on her voyage without payment. The Nestor I, Summer 73 (American.)
  3. Nor by the fact that the master and owners are personally liable, as the party may trust to the credit of the ship, the master and the owner.  Lane v. Brig President, 4 Wash., C.C. 453 (American.)
  4. Where goods are furnished for the use and benefit of a foreign ship, the presumption is that the ship is liable, and to rebut this it must be distinctly proved that credit was given to the individual only.  The Perla, Swabey, 254.  Pritchard, Vol. I, p. 363.
  5. Material men have  a lien for repairs to a ship in a foreign port, whenever those repairs are apparently reasonable and proper, although not absolutely necessary; all that is required on their part ids good faith and reasonable ground for action. Ship Fortitude, 3 Sumner, 228 (American.) 1 Pritchard, p. 357.
  6. Sale by order of the Admiralty occurs principally in cases of bottomry and  salvage, when the Court always makes a decree of  sale, if necessary, to satisfy the claims which they sustain.  Doubtless the same decree would be made in any suit in rea, against the ship,  where the  same necessity arose. - In  wages or repairs.  Whenever a sale is decreed the Court gives such orders and takes such precautions as may seem necessary and proper to protect the interests of all parties; and such a sale, it would seem, conveys the property free from all incumbrances.  Parsons on Maritime Law, Vol. II, p. 643.
  7. Material men may proceed in the case of supplied, repairs or other necessaries furnished to a foreign ship or to a ship in a foreign port, against the ship in rem; or against the master or the owner in personam. 2 Parson, p. 675.
  8. In the case of the General Smith (4 Wheaton, Rep. 438) the Supreme Court of the United States held that where repairs have been made or necessaries furnished to a foreign ship or to a ship in a port of a State to which she does not belong, the general maritime law, following the civil law, gives the party a lien on the ship itself for his security; and he may well maintain a suit in rem in Admiralty to enforce his right (American.) Abbott on Shipping, p. 122 (Note.)

   The COURT issued the following decree:-

   Upon hearing counsel of the petitioners, Messrs. S. C. Farnham & Co., and the evidence in support of the petition, and what was alleged by the said Master and the Agents of the owner of the said vessel, this Court doth order that the said petitioners are entitled to the sum of Sh. Tls. 22, 373.31 for repairs and for work and labour done and materials supplied to the said vessel.  And this Court doth order and decree that the  said vessel, her tackle, apparel and furniture be sold by public auction on or before the 18th day of December, 1878, and that the notice of the sale be advertised in the North China Daily News and Shanghai Evening Courier newspapers, commencing without  delay such  sale, and that a telegram be forwarded to the last known place of residence of the owner of the  said vessel notifying him of this order for the sale of the  said vessel, and that in default of payment by him of the said sum of Sh. Tls. 22,373.31, the  sale as ordered is to proceed. And that the proceeds of the sale of the  said vessel be paid into this Court and be applied toward payment of the amount due to the petitioners after decocting costs and expenses of such sale, and all parties are to be at liberty to apply to this Court in this matter as they shall have occasion.

[Seal of] CHEN, Judge.  [Signed] F. J. MACGOWAN, U.S. Assessor.

  •  -       -

   A telegram was accordingly despatched by the Court to Mr. Scheel at Lima, which, like former messages, was unheeded.  Finally, a telegram was sent by David H. Bailey, Esq., U.S. Consul-General, to the American Consul at Lima, which elicited an answer from Mr. Scheel declining to send money for the repairs. 

   Whereupon the vessel was sold by public auction on the 20th Dec. for 12,000 taels, and she has since been placed under the American flag.


The North China Herald, 10 October 1878


   The Costa Rica barque Martha has lately been undergoing extensive repairs at the Tung-ka-doo dock.  She has been supplied with a new keel, stern, stern=-post, upper deck and houses, and wherever anything has been defective it has been replaced by new material; in fact she has been thoroughly overhauled from keel to truck.  The repairs have been executed by Messrs. Farnham & Co.


The North China Herald, 21 December 1878


   Under a decree of the Mixed Court at Shanghai, the Costa Rica ship Martha, with all her tackle, apparel and furniture, was yesterday sold by public auction by Dr. H. Latham, Officiating Marshal of the Court of the United States Consulate-General.  In July last the vessel arrived here in great need of repairs, and by the orders and direction of her master, E. Gunzel, and of her agents Messrs. Buchheister, Schmuidt & Co., she was, during the months of September and October, docked at Tung-ka-doo and thoroughly repaired by Messrs. S. C. Farnham & Co., at a cost of Tls. 22,373.31.  Messrs. Farnham & Co. were unable to obtain payment from the captain or the ship's agents, and on the 7th Nov., filed a petition in the Court of the United States Consulate-General, praying that the ship might be arrested and sold, and the proceeds of the sale applied in  satisfaction of their claim.  Annexed to the petition was a copy of the petitioners' bill, containing all the details of expenditure for labour and materials supplied, in doing the repairs.  It was also set forth that all the repairs done were absolutely necessary to restore the ship to a seaworthy condition, and that the bill had been approved of as correct by the master and agents of the vessel.

   Costa Rica not having any consular or other representative at Shanghai, the matter, through the United States Consulate-General, referred to the Mixed Court Magistrate Chen and Dr. Macgowan, the United States Assessor, a decree was issued for the sale of the vessel by the Marshal of the Court of the united States Consulate-General  The sale was duly advertised, and took place yesterday morning on board the Martha, a steam-launch being employed to run from the American Consulate Jetty for the conveyance of parties desirous of attending the sale. 

   Upwards of thirty persons assembled on board at the time appointed for the sale to take place, and there were several different bidders.  The highest bid of Tls. 12,000 was by Messrs. Farnham & Co., and the Martha was knocked down to them for that amount.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School